Public Bill Committee

[Mr. Edward O'Hara in the Chair]

Clause 10

Power to take fingerprints and samples: England and Wales

David Heath: I beg to move amendment No. 7, in page 7, line 5, leave out subsection (4).

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 60, in page 7, leave out lines 7 to 10 and insert—
‘“(1AA) Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples shall be destroyed no later than six months after the date when such control orders shall cease to have effect.”’.
No. 10, in clause 12, page 9, line 19, leave out subsection (5).
No. 61, in clause 12, page 9, leave out lines 21 to 24 and insert—
‘“(1AA) Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples shall be destroyed no later than six months after the date when such a control order shall cease to have effect.”’.

David Heath: I welcome you back to the Chair, Mr. O’Hara. We had a good sitting this morning. We made good progress in a state of almost complete cordiality. Let us hope we continue in that vein.
The clause deals with the power to take fingerprints and samples. The Minister has already made it plain that he considers that the fact that this was not a power open to officers in respect of control orders was an omission in the earlier legislation. I accept that. Although I have serious criticisms of the control order regime I understand why he would want to be able to take fingerprints and samples of those who are within it. Where I have a difficulty, and that is expressed in amendment No. 7 in respect of England and Wales and amendment No. 10 in respect of Northern Ireland, is in the retention of those samples, particularly their retention for purposes other than that for which they were originally taken.
Two principles are in play in English law at the moment. Fingerprints are not retained after the event in the case of people who are not accused of any offence, but DNA samples are. Many people have been critical of the fact that, irrespective of whether they have been released without charge or acquitted in a court, a group of people have had samples taken that are retained in the database. The rest of us, who have happily never been arrested, charged or put before a court, are not subject to that requirement. We do not have to give samples. The database therefore is made up of a skewed sample. If it were skewed simply towards those who had been found guilty of a crime, I could understand it. I could understand the logic of having a universal database. What I cannot understand is a database of those who have been found guilty of a crime and those who have expressly not been found guilty of a crime but who have their samples retained.

David Davies: The hon. Gentleman makes a well-known case that has been explored. While it is possible to get quite emotional about this and the apparent lack of logic, in reality the vast majority of people who are arrested are arrested for a good reason. They may not be convicted of a crime afterwards, but many of them will have committed crimes and most of them will have associated in some way with other criminals.

David Heath: I am very worried by that intervention, not least because I believe the hon. Gentleman holds the office of constable. If that is the case, he has a profound misunderstanding of the principle of innocence until found guilty. Consorting with criminals is a rather archaic offence, but even if one is not found guilty of that before a court, it is not something that I would immediately use in support of an argument. Anyway, I shall set that aside as I do not think that it is typical of the views of the Conservative party on this; it is the view of the hon. Gentleman to which he is perfectly entitled.
The subsections that I suggest could be removed are those that deal with retention. The clause states:
“Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken”—
and it goes on to say—
“but shall not be used by any person except as described in subsection (1AB).”.
I accept that. However, the measure is still a matter of some concern, because control orders, whether or not they are a good way of dealing with a particular problem, are exceptional as a class of punishment. They are a punishment without findings of guilt; punishment on suspicion, effectively. They are a way of ensuring that people are not a danger as a pre-emptive measure rather than post-charge and post-finding of guilt.
Therefore, to retain fingerprints and samples from such a person, against whom no charges have been put and against whom no case has been proven, seems to be at the very least dubious, and to do so after these samples have fulfilled the purposes for which they were taken is dubious in the extreme. So, I suggest that we need to take great care to examine whether this measure is proportionate and appropriate, and also to examine the value that it will have. It may be that the Minister can persuade me that there are circumstances in which this measure will be of enormous value and that it is right for these subsections to be included in the Bill, but I am not yet convinced of that case.

Dominic Grieve: Both this set of amendments and the next set, which stands in my name, touch on exactly the same issue, which has been rightly highlighted by the hon. Member for Somerton and Frome. Although they both suggest a slightly different way of approaching the matter, and I shall come on to my amendments at the right time, nevertheless their main thrust is essentially identical.
It is no secret that, on a number of occasions, I have expressed my growing concern at the departure from the normal rule, which used to prevail until the middle of the 1990s, that only the DNA and fingerprints of a convicted person were retained and placed on the national database.

David Heath: I think that the amendments of the hon. and learned Gentleman are grouped in the same group, unless I am reading from a completely wrong selection paper. So he is perfectly in order to speak to his own amendments.

Dominic Grieve: I apologise and I am grateful to the hon. Gentleman, because I was looking one grouping further down and I thought that the groupings were separate. I am grateful to him for bringing that to my attention. Indeed, it makes absolute logical sense that they should be so grouped, because they are, as I said a moment ago, very similar.
Just to go back to where I was starting, I am on record as having previously expressed my concern about the departure from the principle of retaining DNA evidence only from convicted prisoners. In fairness, the first departure from that principle happened under a Conservative Government, when the decision was taken that the DNA—in so far as knowledge of DNA existed at that time, because such knowledge was just beginning to emerge—and fingerprints of individuals who had been acquitted of a crime should be retained. The present Government then expanded that to the retention of DNA and fingerprints taken from those people who were arrested.
I simply make the point to the Minister that I receive a regular stream of letters from individual constituents complaining about such retention of DNA and asking me to make representations to chief constables. In one case, it was a septuagenarian carer who had never been in trouble with the law before. She found that, as a result of a completely misplaced accusation from the woman she was caring for who had almost certainly gone senile, she was arrested, her DNA and fingerprints were taken and it was only about 10 days later that she was entirely exonerated of having allegedly taken money from the bank account of the woman she was caring for. She felt very badly about the retention of her DNA and fingerprints on a national database.
So there has been a growing chorus of disapproval. At some point, Mr. O’Hara, because I do not want to go down a byway in this debate, this issue will have to be revisited by Parliament, because it is deeply and profoundly unsatisfactory.
We must consider today the much narrower, but clearly linked, issues of whether we should have the right to take DNA fingerprints from individuals who are subject to a control order and whether we should subsequently be able to retain them. Although the first of those worries me as a development, I have no doubt that taking DNA and fingerprints from a person subject to a control order is justified. I say that with a certain amount of hesitation, but it seems to me that it should be done for compelling reasons of proportionality. The principal one is that the enforcement of a control order may require the taking of DNA and fingerprints, particularly if an order is breached. That in itself justifies doing it.
More worrying from my point of view is the question whether the making of a control order is simply being used as an excuse to obtain DNA and fingerprints for wider investigative purposes. It would be useful if the Minister told the Committee whether there has been a single instance of a control order being made on a person who has never been arrested. Something suggests to me that that is rather unlikely to arise, and it would be useful for the Committee to know whether it has ever happened. I can see that it is perfectly possible, at least in theory, for a control order to be made on a person who has never been subjected to arrest, and for the entire control order procedure to take place without DNA and fingerprints having first been obtained by the police.
The question is whether that material should be retained on the national database. The Government have chosen to expand the category of people from whom they can obtain DNA and fingerprints, and I have the gravest reservations about such retention in the case of a person who has never been arrested, charged or even acquitted of an offence, and certainly never convicted. If the Government wish to obtain DNA and fingerprints, the only possible rational justification must be that it is required directly for the enforcement of a control order. I might add incidentally that taking such material will inevitably give the Government and the police the opportunity to check whether the person concerned has been involved in any criminal activity that they wish to impute to them. It is inherently unlikely in most cases that the individual concerned will not have been arrested for something before the control order was made. That is why that is an important piece of information for the Committee to have.
Amendments Nos. 60 and 61 are intended not to delete proposed new subsection (1AA) entirely but to provide for a six-month period from the date when the control order comes to an end, after which the material would have to be destroyed and removed from the records. The Scottish system, which I think now operates a two-year period of retention when individuals have been arrested but not charged, seems to have considerable sense. I think that it applies also to individuals who have been acquitted. It provides for a period of retention in case something turns up that means that the material needs to be used, but gives a sense of reassurance that there will come a point when the material is removed.
This is something of a philosophical issue. I feel strongly, and it is my party’s position, as the shadow Home Secretary has repeated on a number of occasions, that the system that we are creating, of finding opportunities to take DNA and fingerprints from individuals who have not been convicted of offences, is untenable. The clause might even be overturned if the decision of the European Court of Human Rights goes against the Government on that point. It might be possible to sustain it along the lines suggested in the amendments, but it would certainly not be possible to sustain it along the lines of the Government’s proposals to keep the material in question indefinitely.
For those reasons, I find myself extremely troubled by the proposal, and the Minister will have to provide some compelling arguments to explain why we have to add to the already long list of groups that have to supply DNA and fingerprints. As the Minister knows, the alternative route that is floated from time to time is that all of us in this country should provide our DNA and fingerprints to the authorities. Perhaps it could be some form of civic celebration that takes place at the age of 11—the age of criminal responsibility. Or, as Lord Justice Sedley suggested, every single visitor to this country—even from the European Union—should be welcomed on their arrival at Heathrow airport with a visitor’s visa and a requirement to provide DNA and fingerprints. That proposal at least has intellectually more sense than what we are doing at the moment. While I am not against the idea that we should make an exception for obtaining this material for the sake of enforcing control orders, I am deeply troubled by the suggestion that we should retain it for long-term purposes, having obtained it under another sleight of hand, which is being introduced for that purpose. I hope that the Minister can provide some rational justifications because at the moment I fail to see them.

Tony McNulty: Welcome back to our deliberations, Mr. O’Hara. I understand the thrust of what has been said, but I think that much of it is misplaced and, rather like the last set of amendments, belongs to the wider national debate. For better or worse, the national DNA database is controlled and governed under regulation by the Police and Criminal Evidence Act 1984. The points that the hon. Gentlemen make about the retention of DNA samples on that database more properly belong in a debate about the existence of the national DNA database in the first place. When he appeared before the Home Affairs Committee, the right hon. Member for Haltemprice and Howden (David Davis) said:
“I am comfortable with the terrorism issue but I do think we need to review our whole approach to DNA retention, particularly of people who are exonerated, who are not charged, and certainly not convicted. So I am comfortable with using it in this context and having proper transfer arrangements in this context, but I think we have got to come back to the whole DNA issue on criminal law anyway at some point.”
I concur with that although I might not agree with the outcome. I agree with Chief Constable Tony Lake—until recently, he was the Association of Chief Police Officers’ lead on forensics including DNA—that there needs to be a thorough review of the statutory architecture, including PACE, that governs the retention of DNA samples. I am very happy to have that debate.
I chuckled a wee bit when the hon. and learned Member for Beaconsfield referred to Lord Justice Sedley because I rather foolishly said on the “Today” programme—I thought that I was having a proper conversation rather than a Punch and Judy show with John Humphrys—that I had some sympathy with the logic of the case. Five days later, that was written up as, “The Government have sympathy with a universal database.” I never said that; I said that I had sympathy with the logic of the case. Given its intellectual logic, one would be a fool not to. Having looked at the matter in the wider criminal sense—I will return to the amendments in a moment—I am comfortable that we have it about right, if we start from the philosophical assumption that the DNA database is not a rogues gallery, a list of the guilty and convicted—it patently is not that—or a list of those who, but for a bit of luck, are probably criminals anyway, which is along the lines of the point made by the hon. Member for Monmouth. Again, that is a perfectly fair point, but not one with which I would necessarily agree.
There has been consultation and a proposal to extend the existing criteria for the national DNA database to non-recordable offences. At the moment it covers only recordable offences, whether the person is finally convicted or not. We shall probably resist that, not least for the reasons suggested by others, and we believe that it is about right now. This is not the place to go through the litany—it is a huge list—of cold cases and serious cases that were cracked in the first instance because a DNA sample was on the national database, often for entirely erroneous reasons. I am talking about serious murders, serious assaults, serious robberies, rape and a range of other cases.
I do not want to stray too far from the point, but it is clear that Stephen Wright in Ipswich would not have been caught bang to rights were it not for a DNA sample on the database. It was not the only evidence against him, but it pointed to his guilt, and it arose either because of a minor theft of a car or a minor assault or affray—I cannot remember which, because I confuse it with the Croydon case.

David Heath: But he was guilty.

Tony McNulty: There were minor fines in both cases. I take that point, but none the less, the murders were resolved only because of the DNA samples.

Martin Salter: Perhaps I can help the Minister, because I was a member of the Home Affairs Committee when the debate was raging, as were other hon. Members here. Stephen Wright was convicted as a result of DNA collected following his arrest for a bar fight. However, does the Minister accept that Liberty—I am sure that it will be prayed in aid when we discuss other matters relating to the Bill—has argued that DNA should be collected only from convicted sex offenders? In that case, Steve Wright would not have been convicted, and other lives might have been at risk.

Edward O'Hara: Order. I do not want the Committee to go too far down the road of discussing that illustrative example.

Tony McNulty: I do, Mr. O’Hara, but I will not.
The point is that the balance must be right, if one accepts, as one should, that the national DNA database, including the elements that we are considering in the clause and amendments, is an investigatory and inquisitorial tool. It is not about a criminal record. It is not about a list of criminals. For the sake of public safety, given the police’s 14,000-plus hits annually—I cannot remember the exact number—and the 35,000-plus crimes that have been solved because someone is on that database, on that precautionary principle the balance must be about right now.
Tony Lake, the chief constable to whom I referred earlier, has some reservations about the time frame for retention, particularly for the young and those who are not convicted, and it is reasonable to explore that further during the review of the Police and Criminal Evidence Act 1984, but I am with the right hon. Member for Haltemprice and Howden (David Davis), who has the same name as the hon. Member for Monmouth but differs from him in so many ways.

David Davies: I am known as the more right wing of the two of us.
The Minister will recognise that there is a low conviction rate for sex offenders. I fully accept that the system is not perfect, but it is probably the best of many bad systems that we could put in place. If we did not have it for offences such as sex offences and because of the low conviction rate, many people would get away with crimes that they otherwise would not.

Edward O'Hara: May I remind the Minister of my previous ruling? We are going down a side alley.

Tony McNulty: I agree entirely, Mr. O’Hara, but you will forgive me for peeking down the side alley that unites the right hon. Member for Haltemprice and Howden and me—[ Interruption. ] It should, but occasionally all Members of Parliament with the name of David Davis or David Davies, however it is spelt, get it right. This is one of those rare occasions. I seriously believe that the balance is right. I agree that that debate is serious, but it is a debate for the wider PACE review. The right hon. Gentleman the Member for Haltemprice and Howden with reservations agrees—I do not want to put words into his mouth save for those lifted from the Select Committee—with what we are trying to do in relation to controlees, but recognises that wider debate should and will happen too.

Dominic Grieve: I do not disagree with my right hon. Friend the Member for Haltemprice and Howden. I made it clear to the Minister that the logic of being able to take DNA and fingerprint material from somebody subject to a control order, for the purposes of its enforcement, seemed to be overwhelming. I do not believe that that would be successfully challenged in the European Court of Human Rights anyway. That said, the question, which cannot be divorced from the wider issue, about the accretional way in which we are building up the national database in which that will be an additional element, should be of concern to the Committee, because we do not have a strategy for that. Therefore the answer to the question of how many people that would cover at present is rather important. I worry that the way in which we are building up that database is undermining civil liberties. There can be no doubt about that. If it were not, the arguments that Mr. Lake put forward about how unfair it might be to those of 11 and 12 would be invalid. So we cannot escape the fact that there is an ethical issue.

Tony McNulty: With the greatest respect, nor am I trying to. I am just saying that the substantive parliamentary debate about those ethical issues belongs elsewhere. I was going to say that I would continue on the amendments, but perhaps, following your admonishments, Mr. O’Hara, I should start on the amendments, because that is an important point. At the moment—I will not go into details for obvious reasons—the number is about 13 or 14. That is relatively low; at its peak it has only ever been about 18. If the ethics are wrong, one is too much, so I am not suggesting at all that because 13 or 14 are so few it does not matter terribly much.

Dominic Grieve: But how many of those 13 or 14 have never been arrested? I suspect—from reading the newspapers, but the Minister will be able to correct me—that the overwhelming majority of those have been arrested at some point in the course of police investigations, prior to a control order being sought against them.

Tony McNulty: With respect, I do not think that that is right, but I am sure that people who do not exist in the room will tell me in a moment. This note is probably not the answer, because it never works like that in my experience in Committee. I will come back to that. I do not think that that is right because, by definition, many of the controlees will be people about whom we have significant intelligence but on whom we have insufficient evidence, even in the first instance. So it does not absolutely follow that they would have been of interest to the police and arrested at previous stages. We will see if the information is available, and if I stand corrected I shall tell the Committee so.
I hesitated over 13 or 14 because there are a range of factors—let me say no more than that—that may mean that that number fluctuates. Hopefully the Committee will indulge me and appreciate that I cannot say any more than that. Either way, globally at any given time, that will impact on say 10 to 20 people. I do not say that to diminish the ethical or civil liberties dimensions but just as a matter of fact. The purpose of the clauses is to put the power routinely to take fingerprints and non-intimate samples of controlled individuals on an equivalent basis to existing police powers in relation to fingerprints and non-intimate samples taken after arrest in the relevant jurisdictions. Rather like our debate on the previous set of amendments, that simply reflects the existing jurisdictions that we are trying to match in those instances, and no more than that. Current procedures in England, Wales and Northern Ireland allow the retention, with defined exceptions, of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken, when individuals are arrested under the Police and Criminal Evidence Act or the Police and Criminal Evidence (Northern Ireland) Order. The corresponding provisions in schedule 8 to the Terrorism Act 2000, which apply in all home countries’ jurisdictions, also allow for the retention of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken.
It is germane to add that the term “fingerprints” is clearly self-defining, although it also includes palm prints. Furthermore, “non-intimate sample” means a sample of hair, other than—clearly—pubic hair; a sample taken from, or from under, a nail; a swab taken from any part of a person’s body, including the mouth, but not any other bodily orifice; saliva, or a footprint or similar impression of any part of a person’s body other than a part or the whole of a hand. To make it very clear what we are discussing, those are the definitions of fingerprints and non-intimate samples under PACE.
We do not believe that fingerprints or non-intimate samples taken from controlled individuals should be subject to different rules for retention, whether by deleting subsections relating to their retention or by specifying the destruction of the fingerprints or samples six months after the control order for the individual concerned has ceased to have effect, which, broadly speaking, is what the amendments would do. We oppose the amendments—I have saved that until now. Rather than tease the Committee, my speaking note says right upfront, “The Government are not in favour of the amendments.” However, I like to work up to that point, rather than introduce our position at the beginning.
First, we consider it appropriate that fingerprints and samples of controlled individuals be retained on the same basis as samples taken from other individuals under PACE, PACE (Northern Ireland) or the Terrorism Act, because controlled persons are, by definition, suspected terrorists. I understand the point about definition that the hon. and learned Gentleman made about charge or no charge. It was a reasonable point, but I do not necessarily agree with how he built on it.
Secondly, and relatedly, the same safeguards and provisions apply as for other fingerprints or samples taken under PACE, PACE (Northern Ireland) or the 2000 Act. For example, samples may be used for specific purposes only. Thirdly, and again on a related point, we do not think it appropriate to debate the wider issue of the retention of fingerprints or samples under PACE or the 2000 Act in the narrow context of controlees.
Fourthly, and on a practical level, the retention of fingerprints or samples might help the police and agencies with future criminal or terrorist activities and investigations. By retaining controlled individuals’ biometrics, we strengthen the ability of the police to prevent, detect and investigate such crime and terrorism and to increase the chance of the individuals responsible being prosecuted. The powers might also help to get suspected terrorists off control orders and down the Government’s, and everybody else’s, preferred route towards prosecution. Finally, to demand the destruction of fingerprints or samples of controlled individuals could also cause unnecessary practical difficulties and confusion because it will run counter to all existing procedures. I argue that the Committee should not accept the amendment for those reasons.

Dominic Grieve: I confess that my mind started to boggle slightly when the Minister said that it would cause difficulty because it is contrary to all current procedures. At the moment, I am making successful representations, in a number of cases, to my chief constable, asking her to do just that. He has made some good points, but that perhaps is not the best one.

Tony McNulty: My mind also boggled a little when I read it out. I, too, think that it was the weakest of the points. Under existing PACE laws, chief constables have the discretion to which the hon. and learned Gentleman alluded. Pending the European Court of Human Rights judgment that we are appealing, that is the only significant means of removing samples from the database, and that is perfectly in order.
My argument is that the amendments would run counter to current procedures for the specific set of individuals being debated. I contend very strongly that those individuals, on all balance and proportionality, should be on, and stay on, the DNA database once we have obtained those samples. I have made my reasons for that clear: national security and the ability to assist in subsequent terrorist cases. We must strike that balance—although I concede that that wording is a bit flabby. The PACE review is looking, as part of that wider national debate, precisely at what sort of discretion the chief constable should have and what criteria should be utilised, but I do not want to address that point again now.
Having agreed on balance that it is perfectly justified and proportionate to take the samples in the first place, given the nature of the individuals concerned, it would be illogical to apply a different set of rules to the retention of those samples for the purposes of the Bill, rather than look at the issue and others, whatever the philosophy, in the wider context of a debate about PACE.

Dominic Grieve: If we still had the old system that was used in the early 1990s, whereby all DNA and fingerprints were destroyed if a person was acquitted, and if the Government came to the Committee and asked for a single exception to be made in the case of control orders, I would not necessarily be unsympathetic to such a request. I remain concerned, however, as I think the Minister understands, at the way in which we are increasing how we capture DNA, without having a rational debate about it.

Tony McNulty: I have partly indicated that I broadly concur with that, but in the context of the Bill and for the purposes outlined in these clauses, my balanced judgment perhaps goes the other way to that of the hon. and learned Gentleman, although I am not even sure in which direction he would go, given his contributions. I do not think that there is much between us. During the John Humphrys interview to which I have referred, I did say—when I could get a word in edgeways—that it was perfectly reasonable to have a substantive debate on issues relating to retention and on all the other matters that Tony Lake and others have referred to in the PACE review, but that is for another time.
We are where we are, by accretion or otherwise. I am saying that controlled individuals are such a particular group that, in the interests of our fight against terrorism, we should not only take samples, but retain them. We should certainly retain them on the basis of the existing laws that prevail for everyone else with regard to the DNA database. Whether that should change is a matter for another national debate. When we have that debate, I will argue strongly, in relation to the retention of samples from people who are not convicted, that samples should not only be taken from those individuals, but be retained for as long as utterly possible in the interests of national security. That is why I ask, on balance, that both groups of amendments be resisted.

David Heath: I am grateful to the hon. and learned Member for Beaconsfield and to the right hon. and unlearned Gentleman, the Minister.

Tony McNulty: Unlearned?

David Heath: Come on, the Minister cannot have it both ways—he objected when I called him “learned”.
I am grateful for the contributions, but a few points need to be made about the debate in which we have just enjoined. I accept from the Minister that it is consistent with the control order regime for this power to exist. I do not accept the control order regime as it is constructed, and he knows that I do not think that it is working well and see it very much as an exceptional circumstance. However, while the present regime is there, the power to take samples from those individuals is consistent with it.
The Minister is right to say that retention is a wider issue than can be addressed by the narrow confines of the amendments and, indeed, the clause before us today. I sympathise with his problems with the “Today” programme and with having to explain the logic of a universal database: I have used exactly the same words before and been shot down in flames by those who have misunderstood me and thought that I was advocating a universal database when all that I had said was that it is more logical than the current situation. It has an internal logic that the present situation does not.
I am not quite so happy with the view that the partial database—including, as we have debated this afternoon, not only those who have been found guilty of a range of offences, but those who have been arrested but freed without charge or those who have been charged and found not guilty—is entirely the innocent investigatory tool that it has been suggested it is. It is a wonderfully powerful investigatory tool and I would not want to deny the police the opportunity of using it to investigate crimes properly.
I cannot remember if certain Members were on the Bill Committee when we introduced the DNA sample regime a few years ago; I am pretty sure that I was, because I seem always to be on such Committees. We Liberal Democrats did not argue against the principle of a DNA database. We said that, to make it effective, either people who are innocent of any crime should not be on it or everybody should be on it. The problem with a partial database is that, even with the increased sophistication of DNA testing and comparing, there are false positives. People are more likely to come circumstantially under suspicion as a result of being on the database than if they are not on it. Whereas it can be argued that that is a price that someone has to pay for having been convicted of a crime, it is hard to sustain the view—other than by the hon. Member for Monmouth, who feels that someone who looks shifty ought to be on the database—that somebody who is innocent of a crime ought to have that risk attached, in addition to the fact that for every set of DNA characteristics there are probably six, seven or eight people in this country who are sufficiently close to provide a false match. Many Members have always been concerned about that.
The Minister says that this is not the time or place to have this argument and I agree. He is right to say that. But the trouble is that this is our only opportunity to stop that accretion—as the hon. and learned Member for Beaconsfield called it—of further DNA samples on to the database of people who have not been charged with, and have certainly not been found guilty of, any crime. This is our only opportunity to argue the case and suggest that this fundamental issue needs to be addressed.
It could be argued that there is likely to be—we cannot say that there will definitely or even probably will be—a higher level of culpability in respect of someone against whom sufficient intelligence evidence has been put together to ensure that a control order has been secured. In such a case, there is likely, perhaps, to be a higher level of culpability than in respect of someone against whom no charge has been preferred and who has simply been picked up by the police and released without charge. That is a proper inference to draw from the circumstances. If any group is the first to be removed from the database, it should not be the controlees, but should be those who are released without charge because they have not committed any crime and against whom the police have no evidence on which to charge them.
We have to use opportunities such as this in Committee to rehearse these arguments, even if they will return time and again. I welcome what the Minister said about the need for a wider review of this matter. It is essential that we do that. However, I do not share his phlegmatic assertion that the present situation, with the inclusion of these samples, is where we ought to be. I have deep concerns about that. However, we are right to raise the issue.
The hon. and learned Member for Beaconsfield and I have raised quite proper concerns in today’s sitting and we have used this opportunity to register them. That is a proper use of the Committee. Having said that, I do not intend to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 10 ordered to stand part of the Bill.

Clause 11

Power to take fingerprints and samples: Scotland

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I just want to take the opportunity to tease from the Minister the different regime that will apply in Scotland. As I understand it, while it would be possible for a retained DNA sample taken in such circumstances to be used for the purposes of terrorist investigation or in the interests of national security, a different limit will apply there from that which applies in England, Wales and Northern Ireland. I should be grateful if the Minister could confirm that. I simply make the point that the fact that the Minister has had to accept a different regime in Scotland highlights differences, which it is not suggested are about to bring the world to an end, notwithstanding the fact that the Minister has to accept different Scottish legal principles.

Tony McNulty: In filling the omission in relation to the control order regime, the thrust of clause 11 is to get matters on a par with the jurisdiction within which they sit. An important point has been overlooked, certainly in the amendments to clause 10, some of which were also relevant to clause 12, but not to clause 11. Samples secured in Scotland under the Terrorism Act 2000 are not destroyed, as someone suggested earlier—in the normal context, under the Criminal Procedure (Scotland) Act 1995, they are. We simply seek to reflect that dimension in terms of Scottish jurisprudence, which, as everyone knows, long outdates any notion of devolution. The system has been significantly different for a considerable period of time, and it is right and proper that we reflect that.
As the Committee will know, terrorism and security matters are not devolved. Routine criminal law has clearly been long devolved in Scotland and we simply seek to reflect that position. That is not to say that the Scottish Executive cannot see the potential merits of the wider powers set out in clauses 10 and 12 for England, Wales and Northern Ireland, but it is quite properly for them to examine whether and how best to incorporate the devolved elements of those provisions into existing Scottish law.
The Committee might know that the Scottish Executive has undertaken a review of other aspects of DNA and fingerprint powers. Scottish police powers on the use, storage and retention of fingerprints and non-intimate samples for individuals subject to control orders could be brought into line with those for the rest of the UK at the same time as any other legislative changes resulting from that review. I cannot remember whether it is confirmed, but some time in the immediate future I shall meet the Scottish Justice Minister to discuss that and a range of other matters. In seeking to fill the omission in clauses 10 and 12, clause 11 perfectly properly reflects the jurisprudence that prevails in Scotland. In that context, I commend it to the Committee.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clauses 12 and 13 ordered to stand part of the Bill.

Clause 14

Material subject to the Police and Criminal Evidence Act 1984

Dominic Grieve: I beg to move amendment No. 84, page 10, line 8, leave out ‘or samples’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 86, in clause 15, page 11, line 7, leave out ‘or samples’.

Dominic Grieve: These amendments were also tabled by my hon. Friend the Member for Newark. They are simply probing amendments to gain an understanding of what the word “samples” encompassed in the two clauses. I think that I know the answer, but if the Minister would like to explain the matter to the Committee, I am sure that my hon. Friend would be pleased to hear his response.

Tony McNulty: Certainly, in the original amendment paper—I am sure that it has been corrected—when amendment No.86 was first tabled, it referred to clause 14 rather than 15. I am not too sure—

Edward O'Hara: The two amendments refer to the identical phrase in the two clauses.

Tony McNulty: Clause 14 makes amendments to the Police and Criminal Evidence Act 1984 and Clause 15 makes amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 to allow samples obtained under PACE to be checked against samples that are
“held by or on behalf of the Security Service or the Secret Intelligence Service.”.
In this case, “samples” means DNA samples derived, for example, from saliva, blood or swab. Most of what I read out as referring to samples and swabs came from the definition in the explanatory memorandum.

Dominic Grieve: Does that include intimate samples? I rather assumed that it did, but the Minister can doubtless put me right on that.

Tony McNulty: I certainly assume that it does, unless someone tells me otherwise, which they may during the course of my deliberations. However, that was certainly my understanding. Having said that, I have discovered in the past that inspiration does come if one stands around for long enough.
By amending PACE and its Northern Ireland equivalent, these clauses will allow such samples to be checked against samples that are
“held by or on behalf of the Security Service or the Secret Intelligence Service.”.
To facilitate this cross-checking, the clauses change the purposes for which PACE samples can be used, adding simply “national security”.
For example, if the police take a sample from an individual as part of an ordinary criminal investigation, that sample will be retained on the national DNA database, as we have just been discussing, where the uses to which it can be put are regulated by PACE. If a sample is subsequently taken covertly by the security services during a terrorism investigation, but they are unable to identify to whom the sample belongs, the current law would not permit the security services to check the national DNA database. Whatever one’s view of the DNA database, with regard to retention of data and all the other issues that we have discussed, clearly that is a position that should not prevail.
The clauses will rectify that situation and allow the security services to undertake a cross-check to obtain the necessary personal information that will enable them to continue their investigations. In terrorist investigations, where it is vital to construct the network to those involved with terrorist organisations, the ability to make such a cross-check routinely will be invaluable.
The two amendments would amend the two clauses by removing reference to “samples” in PACE and its Northern Ireland equivalent. That would mean that there will be no provision for checking of DNA samples obtained under PACE against police records or databases, as is the case at present. It would also mean that the checking of DNA samples obtained under PACE against records held by the security agencies, which is the entire purpose of the clauses, would not be provided for.
Clearly, it would not be in the interests of effective investigations to remove provision for the police to check DNA samples against their databases or against the records held by the security services. That situation would be particularly peculiar because the amendments would not remove the provision for the police to cross-check fingerprints and footprints against records held by the security agencies, but, because of the use of the word “samples”, they would remove the ability of the police to cross-check DNA samples.

David Heath: In a desperate attempt to stop the Minister’s flow, I am intervening. Actually, I have a serious question—well, I do not know if it is a serious question, but I shall put it. Does the act of the police checking the evidence base held by the security services against the police evidence database, incorporate the evidence held by the security services into the body of evidence that is subject to PACE? Does PACE apply to the evidence held by the security services?

Tony McNulty: I do not think so because the security services hold such evidence for entirely different reasons. PACE is very clearly outlined in the regulatory framework within which an individual is taken through the charge and subsequent process. It relates to the level and quality of evidence in the evidential chain and other elements. Unless somebody tells me otherwise, I struggle to see why PACE should apply to that interchange in use from the security services’ database, unless it is subsequently used in the courts by the police. That would be unusual, but under such circumstances, PACE would cover it. Perhaps the hon. and learned Member for Beaconsfield has an answer.

Dominic Grieve: A better point at which to debate this issue might be when we come to material not subject to existing statutory restrictions. The point raised by the hon. Member for Somerton and Frome is whether material held by the security services may be adduced in evidence in a criminal trial. That raises a host of interesting issues, such as the possible disclosure of how such material was obtained. We can deal with those issues in a moment, but I think that I have understood his point, which is an important one. However, the appropriate time at which to raise it is during our discussion of clause 18.

David Heath: I was just trying stop the Minister reading.

Tony McNulty: I am afraid that the hon. Gentleman will have to do much more than that to stop me reading my notes. I think that I have responded to his point, not least by saying that the utilisation of the security services’ data in any public court would lend them to coverage by the rules of evidence and PACE. That is why it is more likely than not that such evidence would not be used, except in exceptional cases and there have been such cases.
Because I have had inspiration, I can now confirm the point from the hon. and learned Member for Beaconsfield that “sample” covers intimate and non-intimate samples, as we had all assumed. However, unlike in our previous discussions, the clause does nothing to add to the ability to take samples. The measure is about sharing that data and information and must, in the perfectly reasonable way that I put it, make sense to everybody. Clearly, it will be greeted with acclamation and the amendment will be withdrawn.

Dominic Grieve: The amendment will indeed be withdrawn and we can continue the debate under subsequent groups of amendments. I am grateful to the Minister for answering my main question on the scope of the word “sample”. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 62, page 10, line 37, leave out paragraph (a).

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 85, page 10, line 37, leave out ‘national security’ and insert
‘preventing an offence with a terrorist connection’.
No. 63, in clause 15, page 11, line 36, leave out paragraph (a).
No. 87, in clause 15, page 11, line 36, leave out ‘national security’ and insert
‘preventing an offence with a terrorist connection’.
No. 64, in clause 17, page 12, line 29, leave out from beginning to ‘or’.
No. 65, in clause 18, page 13, line 13, leave out paragraph (a).
No. 88, in clause 18, page 13, line 13, leave out ‘national security’ and insert
‘preventing an offence with a terrorist connection’.

Dominic Grieve: We now come to the issue of national security, which features in more than one of the subsequent clauses. As the Minister is aware, I have sought to delete the words “national security” from a number of places. I emphasise that this is a probing amendment. It is, nevertheless, a rather important one for reasons that I will explain briefly.
The Bill is about counter-terrorism, so it is ultimately about the prevention or detection of crime, which, as the Minister will see when he looks at clause 14, features clearly in the words in proposed new subsection (1AB), which refers to
“purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution”.
That covers not just the investigation of a crime after it has been committed, but the prevention of a crime before it is committed.
I believe the Minister will have little difficulty agreeing that, in the scope of counter-terrorism work, it is not immediately obvious what difference there might be between the interests of national security and the prevention of crime, because one would have thought that the sort of activity that takes place in the interests of national security is the prevention of crime, quite apart from its detection afterwards. I do not think that the Committee can simply gloss over the question of what other than the prevention or detection of crime, or, for that matter, the identification of a deceased person, is covered by the ambit of national security.
The term “national security” has a legal definition. It covers the scope of the activities of the security services and the Secret Intelligence Service. The Committee is entitled to ask the question, because I suspect that activities that previously have been conducted—I am mixing my metaphors—on the wrong side of the blanket, if one talks about conception, are now being brought to the right side of the blanket, and things that previously simply did not have a statutory framework at all are now being given one. If they are to be given a statutory framework, the Committee must ask exactly what it will be.
For example, is it being suggested that fingerprints, impressions of footwear or samples, however they may be treated in the different clauses—the amendments do not apply only to clause 14—can be used to protect the economic interests of the United Kingdom? What is the scope to which national security will apply for those purposes? That is the nub of the question that I wanted to ask the Minister.
Let us consider some of the later clauses to which the amendments would make deletions. Amendment No. 65 would amend clause 18, which deals with material not subject to existing statutory restrictions. The clause states:
“This section applies to...DNA samples or profiles, or...fingerprints, that are not held subject to existing statutory restrictions.”
I must assume that, in essence, that is security services and SIS material collated by from time to time taking DNA samples from possible suspects whom they have under surveillance in one form or another.
The clause goes on to state:
“Material to which this section applies that is held by a law enforcement authority in England and Wales...may be retained by that authority and used—
(a) in the interests of national security”.
That appears simply to be putting on a statutory footing what I suspect has already been happening, but perhaps the Minister would like to confirm that that is indeed the case.
I will leave until consideration of the detailed amendments to clause 18 itself the discussion of the counter-relationship, which is using material from the SIS and the security services to bring a prosecution. We touched on that, but the proper place to consider it will come later.
I hope that I have made my main point clear to the Minister. The amendments centre around the definition of national security. An understanding of that as we start our consideration of the clauses would help the Committee to understand what we are in fact making legal for the future that was not previously covered by any legal framework whatever.

Tony McNulty: The provisions on the retention and use of fingerprints and samples have three broad objectives: first, putting a counter-terrorism DNA database on a firmer legal footing; secondly, allowing fingerprints or samples taken under PACE or its Northern Ireland equivalent to be used for national security, as the hon. and learned Member for Beaconsfield implies; and thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the national DNA database.
The amendments concern the second of those objectives. As the hon. and learned Gentleman said, they propose the removal of the provisions in these clauses to add national security to the permitted uses of samples obtained under PACE or PACE (Northern Ireland) and those covered by clause 18. As he said, amendments Nos. 85, 87 and 88 propose an alternative to including national security, which is to include
“preventing an offence with a terrorist connection.”
As he rightly said, “national security” is broadly defined in section 1(2) of the Security Service Act 1989. When Lord Carlile was before us last week, he said:
“It is very difficult to define exactly the concept of national security. The security services certainly have a need to share information, as do other control authorities, which is the generic term that I use for the police, the security services, Revenue and Customs and so on...I believe that any information that is potentially useful in the prevention and detection of terrorism should be shared by appropriate bodies. If that requires placing it on a statutory footing, again, I have no possible objection. I would support it.”——[Official Report, Counter-Terrorism Public Bill Committee, 24 April 2008; c. 118, Q313.]
That is what the reference to national security in these clauses does.
As the hon. and learned Gentleman said, the definition of national security is clear in the 1989 Act. It includes
“threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.”
That is the broad definition of national security. We want an interplay between information, data, samples and so on held by the security services and those held by the police, and this and subsequent clauses are the best way of achieving that outcome. A more narrowly drawn definition, as given in amendments Nos. 85, 87 and 88, does not capture the statutory reasons that afford the security services the right to collect their databases in the first place, which are widely drawn in that definition of national security.
Clearly, not all the activities in that definition are included in the current purposes for which samples obtained in criminal or counter-terrorism investigations can be used. Section 64(1A) of PACE currently allows DNA to be used for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of dead people. The same is true of PACE (Northern Ireland). Clauses 15, 17 and 18, which are the targets of the amendments, insert national security into the uses to which samples obtained under those Acts or clause 18 can be put.
The hon. and learned Gentleman said that the references to national security would be expunged entirely by the amendments, and that is why we must resist them. For example, if the security services took a sample covertly during a terrorism investigation but were unable to identify to whom it belonged, the law as it currently stands, and would remain if the amendments were accepted, would not permit them to check the national DNA database unless they considered the investigation to be related to one of the purposes for which PACE allows DNA to be used. Intuitively, that cannot be right. The law must afford our “control agencies”, to use Lord Carlile’s term, the ability to talk and interact with each other about the data and information that they hold. However, in some terrorist investigations, perhaps undertaken at an early stage, no crime has been committed and no specific crime is envisaged. Samples may be obtained covertly to gather intelligence on a group of individuals about whom there are concerns but who are yet to commit a criminal act. It may then be difficult to say that the investigation relates to the prevention of crime when the focus, for example, is more on establishing links between the persons. The establishment of networks in counter-terrorism is hugely important.
Clauses 14, 15 and 18 will rectify the situation by allowing the use of PACE samples for national security purposes and allowing the security services to undertake a cross-check to obtain the necessary personal information, which will enable them to carry on their investigations. I repeat that, in terrorist investigations, where it is vital to disrupt the networks of those involved in terrorist organisations, the ability to make that cross-check will be invaluable. If the police obtain a sample covertly as part of a terrorism investigation, it is more of a national security matter, as defined by the principal Act, than a simple focus on a particular crime. The sample will be checked against an ordinary PACE sample, with the same benefits that apply when the security services cross-check samples with PACE. For those reasons, we resist the amendment. The hon. and learned Gentleman quite properly did not refer to amendments Nos. 85, 87 and 88, but we can return to them if the Committee wishes. Again, for the reasons that I have mentioned, it is appropriate for the Committee to resist the amendment.

Dominic Grieve: I hope that I made it clear to the Minister that I did not table the amendments for the purposes of dividing the Committee. I wanted some clarity, which the Minister has most helpfully provided, about what the provision means in practice. The explanatory notes were not helpful, therefore it seemed to me that we ought to know what we were doing. As for not touching on the other amendments, they were added later. They did not add much to the issues that we had to debate, although they tried to tease out the difference between national security and preventing an offence with a terrorist connection, which the Minister has properly dealt with anyway. I am grateful to the Minister for providing that explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clauses 15 to 17 ordered to stand part of the Bill.

Clause 18

Material not subject to existing statutory restrictions

Dominic Grieve: I beg to move amendment No. 66, in clause 18, page 32, line 27, leave out paragraph (c).
Clause 18 is about material that is not subject to existing statutory restrictions. I said earlier—the Minister will doubtless confirm it—that the material will be held by a law enforcement authority. However, will he first explain what is the material not subject to existing statutory restrictions? That would be helpful for the purposes of our debate. The clause provides that the material can be used
“in the interests of national security,”
and, as was mentioned earlier,
“for purposes related to the prevention or detection of crime,”
which must mean that there is a possibility of it being taken into court.
Subsection (3) states that one condition is that the material has been
“otherwise lawfully obtained or acquired by the authority for any of the purposes mentioned in subsection (2).”
What does that provision in fact cover? That is the first question that I want to ask the Minister, and in a sense, there is not much point in my seeking to amplify the matter until we have his explanation about the material that the provision covers.

Tony McNulty: Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restriction on a statutory footing to permit law enforcement use for certain purposes. That material includes—I need to determine whether this is the definitive list, because I am not sure whether it is—samples obtained covertly under part 3 of the Police Act 1997 or part 2 of the Regulation of Investigatory Powers Act 2000. For example, under the 1997 Act, a warrant may give the police power to enter someone’s home and take away property to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. A good example is when a person under surveillance discards a cigarette or drinks container, which can then be collected covertly and a sample taken. It also includes material supplied by another law enforcement authority, which by virtue of clause 18(5) includes both domestic and foreign law enforcement authorities—for example, the French police, but I do not know why.
Finally, it applies to samples otherwise lawfully obtained in the interest of national security for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, material lawfully provided by a body other than another law enforcement authority, such as the intelligence services of another state.
I hope that my introduction has been useful and I shall make one last point before the hon. and learned Gentleman replies to the substantive debate on the amendments. We are putting this into statute to clarify that the retention and use of such material is in accordance with our obligations under article 8 of the European convention on human rights, which stipulates that any interference with an individual’s privacy must be
“in accordance with the law.”
For covertly-acquired material particularly, the law should set out how and when such material should be used. In the same way that we have standardised the purposes for which PACE, PACE (NI) and Terrorism Act 2000 samples can be used, that is what we have sought to do here. I hope that that is a useful introduction before we come to the substance of the amendments.

David Heath: The Minister has been helpful in setting out the scope of the clause, and the example of the French police was extremely useful. I wonder at what point the adverb “lawfully” applies in qualification of “obtained or acquired” in section (3)(c). Clearly, it is lawful for the British security service or police lawfully to obtain or acquire information that has unlawfully been obtained or acquired by a law enforcement agency under another jurisdiction. Does “lawfully” apply to the source or simply to the point of acquisition by the British law enforcement authority?

Tony McNulty: I think, in all seriousness, that it would be the former rather than the latter because we are signatories to all sorts of conventions and treaties, including against torture and so on. The Government’s position starts from that broadest concept when defining “lawful”.
A small point that is probably part of the confusion is that PACE and PACE-generated data and samples relate to the police station and the process post-arrest. The provision is about standardising some of the data and other matters secured outside the police station and outwith the PACE process.
The hon. and learned Gentleman was right, and I hope that my explanation was useful in exploring some of the finer details of the amendments, which I shall resist.

Dominic Grieve: I am sorry if my presentation placed the Minister in difficulty. That was not my intention and I wanted to obtain clarification. As I explained, many of these amendments are probing amendments to enable the Committee to understand what we are being asked to nod through.
May I take the matter a stage further by going back to something that was raised earlier? The Minister will see that in subsection (2)(b) one reason for the retention of material is the conduct of a prosecution. That raises some practical issues. Normally, DNA or fingerprint material that is used in a prosecution will have been obtained in a statutory standard form through the PACE rules in a police station. I can see that there may be cases in which DNA has also been lifted from the scene of a crime, and a police officer or one of the forensic officers can give evidence in court to say that that is what he did so that there is the match.
If I understand what the Government seek to do in this sharing of data, it is at least to provide for the possibility henceforth that material that has been acquired by the security and intelligence services could also potentially be used for that purpose. I do not think that it needs me to tell the Minister that that raises some potentially rather complicated issues in relation to public interest immunity, and presentation of evidence in court. Is the Minister in a position to comment—or does he wish to comment during the course of the Committee—whether it is likely that material that comes into this category could realistically be used without disclosing how or where it has been obtained because that might cause difficulty in the presentation of the prosecution case? It also raises another issue.
I may have this wrong, but by virtue of being placed in clause 18 in this fashion, it also comes squarely into the category of unused material. We dealt with that when we discussed intercept evidence, which hitherto has been excluded from any consideration in the court process. What will the consequences be if unused material comes into this category? It may also be subject to the public interest immunity and therefore excluded. I just wondered whether that had been thought through by the Government and the various agencies when they drew up the measure. It may be that it provides a very powerful tool for widening the scope of the sort of evidence that may be available to prosecutors. I am not against that. I wonder, however, whether it might have the unintended consequence of creating complications in relation to this material because the material might not readily be usable in court as unused material, thereby creating difficulties. I just wondered whether the Minister could help us on that point. That is the real issue behind the probing amendments.

David Heath: The hon. and learned Member for Beaconsfield has very clearly set out the concerns that I touched on earlier. I have two issues with this clause, and neither of them are to do with the effective sharing of information and the making of better investigatory powers. The first point has just been touched on, which is the extent to which the embodiment of information from the security and intelligence services into police evidence, which may then be relied on in court or may have admissibility, causes some of the complications with which we are very familiar because of what we have been told about intercept evidence. It seems to me that that is a real possibility and one that we should be aware of before we perhaps cause an unintended consequence to the security and intelligence services.
I think that the Minister allayed my principal concerns in his reply to my earlier intervention. My second concern is that the process could be used, in effect, to launder inappropriate material to a point at which it becomes lawful and admissible, but when its provenance is rather more dubious because it has been unlawfully gained from sources outwith the British law enforcement community. It would worry me if such material became admissible in a court of law and was used for evidential purposes, and if, as a result of the procedure in clause 18, it became the property of the British police service. I think that the Minister has reassured me on that. Perhaps the hon. and learned Gentleman is about to un-reassure me.

Dominic Grieve: It seems to me that it is most unlikely that such material would be improperly used in court, because court procedure would ferret around to unearth whether its provenance made it unusable. However, that might well cause the very difficulties on which I commented earlier to the Minister and on which I sought clarification.

David Heath: The two issues are linked—they are two sides of the same coin. Those concerns, which have been clearly expressed from the Liberal Democrat Benches, are not destructive, but constructive. We are trying to make the clause work and questions remain to be answered.

Tony McNulty: I accept that. If the only thrust of the clause was to get security service data into shape to make it presentable in court—that might happen, but I shall come to that in a moment—I would share many of the hon. Gentleman’s concerns. In actuality, however, it is t’other way around. This is more about affording the security services the opportunity to utilise the national DNA database and other databases alongside their own, for investigative, disruptive and other purposes. For reasons to which I alluded earlier, I would find it very surprising—although this would not be impossible—if security service data and information were to be used in court. That would do nothing to change the evidential trail, or to challenge or change disclosure rules or the investigation or provenance of evidence before the court; both hon. Members quite properly talked about the latter. I am almost arguing the point from the other way around. The clause is about permitting the security services to do far more with police and other data for their purposes—principally intelligence and disruption—rather than the other way round, as the hon. Member for Somerton and Frome mentioned. None the less, that is important. As I suggested, it would present the security services with huge possibilities—I gave examples earlier—that currently the law does not afford them.
I have been in my ministerial role for nearly two years, so I understand that, increasingly, operationally the security services and the police are working closer together. From talking to those concerned, it is evident that there is an interesting cultural clash. Happily, for the country, that is changing rapidly. However, up until very recently, the police’s role has been to secure the evidence and evidential trail, with a view to presenting it in court, to be clear about what can be disclosed to the other side in court, to prepare their case, secure a prosecution by the prosecuting authorities and allow and afford the accused their day in court. The role of the security services, which is blurred by life-and-death considerations, is to watch individuals, to get networks together, to see what people are up to and to disrupt them—job done, bomb or explosion avoided. Of old, on that side of the equation, there was less concern about the evidential trial and what a judge might say. Equally, for the police there was less concern about what the arrest and subsequent activities would do to the intelligence and information gathering activities carried out by the service. They are going very much in that direction.
With the advance of counter-terrorism units and collocation of service and police round the country, the police are learning very sharply and quickly about the needs and desires of the intelligence services in doing their job and the intelligence services are learning more about what the police need in terms of an evidential chain to do their part of the job. This measure simply draws those two elements closer together so that the service can utilise DNA databases and other things to do its job far more readily. Were any of the information and intelligence that it receives to end up as part of an evidential chain in court, all the rules of evidence, including disclosure and provenance, would come into play. This measure will not change that in any way, shape or form.
I understand the concerns of hon. Members, but do not think that they are germane or relevant to the clause. Under clause 18, I think it is more likely that the service will utilise police databases, than that service information will be used in the courts. If it is, the normal safeguards and frameworks set down in law to protect the individual before the judge will remain. The clause will change not a jot of that side of the equation.

Dominic Grieve: I am reassured to hear that. I assume from that explanation that the Minister does not see the potential problem, from the insertion of the words “conduct of a prosecution”, of fishing expeditions directed at the material in the databases of the security and intelligence services. I simply flag that up. I can see that there would be ways of protecting those services from such intrusion by invoking public interest immunity. However, on the face of it, the juxtaposition of the words “conduct of a prosecution” with subsection (3)(c) seems to at least raise the possibility that that could happen. Perhaps I am worrying about nothing.

Tony McNulty: I think that point is included because that possibility exists, but it is not the main reason behind the clause. I cannot in all candour exclude that as a possibility. However, that point is not in there as a device for the execution or advancement of a prosecution.

Dominic Grieve: I am grateful to the Minister. This has been a helpful debate. As I explained, these are probing amendments and if I flagged up an area of concern, it is very much for the Government and not for me. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 67, in clause 18, page 13, line 32, leave out
‘or disclosing it to any person’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 68, in clause 18, page 13, line 32, leave out ‘person’ and insert ‘law enforcement authority’.

Dominic Grieve: The amendment concerns the scope of uses to which the material that is not subject to existing statutory restrictions can be put. Subsection (4)(a) states,
“the reference to using material includes allowing a check to be made against it, or against information derived from it, or disclosing it to any person”.
That is a pretty wide permission. As I understand it, it is not confined to law enforcement agencies, to those involved in prosecuting an offence or to those representing a defendant, but is open to anybody. I hope that the Minister will forgive me for saying that on the face of it, it seems as if that permission runs a coach and horses through RIPA.
Amendment No. 68 would replace the current wording with “law enforcement agency”. However, that might be too restrictive. I wonder if the Minister will help us to understand the reasoning behind choosing an expression that is potentially so broad as to allow material in this category to be disclosed to anybody.

Elfyn Llwyd: May I probe slightly further? Are there any statutory bodies to which the Minister wishes to refer in responding to the hon. and learned Gentleman? Would Her Majesty’s Revenue and Customs come within “any person”? I know that a Department would not normally be referred to as a person, but would it be possible to disclose this information to that kind of Government Department?

Tony McNulty: Although it may be rather clumsily phrased, the point about any person relates entirely back to the reasons established in clause 2, which is where the definitions and limitations prevail. It clearly does not refer to anyone in subsection (2) who may need the material for the interests of national security.

Dominic Grieve: In a funny way, this brings us back to the argument about the scope of the words “interests of national security”. Clearly, if it were confined to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased, a whole series of limiting factors is already provided which make it pretty clear who that person is likely to be. But the interests of national security is a very wide concept, as the Minister has accepted. This seems to place on a statutory footing the right of the Secret Intelligence Service to give to anyone, anywhere in the world, material relating to DNA samples, profiles or fingerprints if it is thought the interest of national security would be served by it.

Tony McNulty: I take the concern. The hon. and learned Gentleman will know that in the first instance many of the people concerned, to answer the hon. Member for Meirionnydd Nant Conwy, come under clause 18(5) where we talk about what constitutes a law enforcement authority and the rather broad definition of a police force. Sharper members of the Committee will note that the one set of bodies that is not there is the Security Service and the Secret Intelligence Service.
As I understand it, the main import of the word “anyone” is to go beyond the notion of police and law enforcement agencies as identified there precisely to include the Security Service. We arrive at that point in this rather convoluted but entirely proper legalistic fashion, by referring back to clause 2(a), (b) and (c) and, by definition, once we have exhausted ourselves working through who might be the relevant agency for those subsections, we arrive at all the law enforcement agencies, all the police forces as suitably defined and everything but the Security Service and the SIS.
That is the convoluted explanation why, as I understand it in my humble, unlearned fashion, it says “anyone” there. If, God forbid, I have misled the Committee in any way, I will stand corrected. But I get no immediate sign of that from the people on my left who are not in the room, although one of them is now scribbling away. But that is what I presume is the configuration and interaction between the various aspects of the architecture. [Interruption.] Yes, that note was helpful, it simply confirmed that what I said was right.

Dominic Grieve: This has been very helpful. The Minister is right. As the Secret Intelligence Service and the Security Service do not come within the definition of a law enforcement authority—the point that I made to the Minister was a bad one: it may arise in the context of clause 19, but it does not arise in the context of clause 18—it must therefore follow that they could not make a disclosure to any person, although, oddly enough, the police could do so in the interests of national security, which is a much wider concept than the prevention of crime.
Perhaps I should not get too worried about that subject, but on the face of it the police and all the other enforcement authorities, including the Serious Organised Crime Agencies and commissioners for Her Majesty’s Revenue and Customs could disclose to any body in the globe if they thought it was in the interests of national security to do so.

Elfyn Llwyd: I am just trying to be helpful in my own little way. I accept the explanation given by the Minister earlier about the words
“or disclosing it to any person”.
However, one has to wonder why clause 19 explains fully that there is a right to disclose to the security services.

Edward O'Hara: Order. We have not yet come to clause 19.

Elfyn Llwyd: Indeed, but I shall finish now, if I may, Mr. O’Hara. I wonder whether that takes away from the explanation given by the Minister.

Dominic Grieve: The hon. Gentleman may well be right. When we come to clause 19, which I hope we will shortly, we will be able to tease that out. Clause 19 is in no way identical to clause 18, because the former is partly concerned with giving people necessary immunity to talk to the security services in circumstances that might otherwise be in breach of current laws on data protection. There are many issues here, but we can consider them later.
The Minister has provided me with the reassurance that this provision is about the law enforcement agencies—I have got that—although, as I say, it is curious that there should be such a blanket right of disclosure in the interests of national security to any person anywhere in the world. However, that may be inevitable because any other attempt at definition would leave out of the loop people who have a legitimate right to receive such information. The Minister will understand why I sought to substitute the words “law enforcement agencies” for the current wording—perhaps one could even say “individuals involved in law enforcement”—because I assume that such people are being specifically aimed at. He may wish to reflect on that or may conclude that my anxieties, or the points that I have raised, are misplaced. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clause 19

Disclosure and the intelligence services

Dominic Grieve: I beg to move amendment No. 89, in clause 19, page 14, line 36, leave out subsection (1).

Edward O'Hara: With this it will be convenient to discuss amendment No. 11, in clause 19, page 15, line 17, at end add—
‘(8) Nothing in this section shall require a person to disclose information to any of the intelligence services for any purpose.’.

Dominic Grieve: The first amendment is a probing amendment. Clause 19(1) says:
“A person may disclose information to any of the intelligence services for the purposes of the exercise by that service of any of its functions.”
Again, the Minister helpfully told the Committee about the definition of national security, which no Committee member would have any difficulty with. However, what functions of the security services fall outside the definition of national security that he gave us?
I want to make my position quite clear. I am not suddenly seeking to put a spanner in the works of an important change to the law that will provide reassurance to individuals in this area. However, the Committee should be able to understand why “any of its functions” would be covered by this blanket exemption from the workings of the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.

Tom Brake: Amendment No. 11 has been grouped with amendment No. 89 and I would like to refer briefly to that. Amendment No. 11 is the embodiment of the concerns expressed by my hon. Friend the Member for Cambridge (David Howarth), who is not a member of the Committee but has a passing academic interest. Although clause 19(1) is clearly permissive—it says that a person “may disclose information”—this probing amendment is to seek confirmation that there are no circumstances in which, perhaps in interaction with other legislation, that permissive “may disclose information” might turn into a requirement to disclose information, and might be used in a more aggressive way to seek information, resulting in the person from whom the information is being sought feeling that it is not being extracted in a permissive manner. It is a probing amendment to reassure us that disclosure is entirely permissive, and that there is no possibility that it may be used in a more aggressive manner.

Tony McNulty: If I may, I will start with amendment No. 11. Given that there is nothing in the subsection that could be taken to mean that an individual could be required to disclose information, the amendment is redundant. Although I understand the point about probing to establish that fact, the amendment is unnecessary because there is nothing in the clause that compels or requires an individual to give information to the service. I understand the point but the amendment is not required.
The substantial part of the Bill, and that covered by amendment No. 89, is more interesting. I do not say that to be offensive but the subject matter of the clauses is more interesting. They are not about deficiency in any areas of the intelligence services work as defined by the Act. Rather we have afforded, under the Serious Organised Crime and Police Act 2005 sections 33 to 35, to those who disclose information to the Serious Organised Crime Agency explicit protection from any duty of conflicts or other restriction to keep matters private. Our concern is that that facility should at the time probably have been afforded to the intelligence services too. So the difficulty now is that there is a higher benchmark and encouragement for SOCA to be able to do what it does, regarding the disclosure of information to it and protection under law for such disclosure. We should mirror those provisions for the intelligence services. That is all that clauses 19 to 21 do. They mirror sections 33 to 35 of the Serious Organised Crime and Police Act. Our concern is that the absence of similar explicit protections for the intelligence and security agencies may cause doubt in the minds of those wishing to give information that it is safe to do so. Given the vital work of the intelligence and security agencies it is important that nothing should dissuade those wishing to protect our society by giving information to the agencies, so that the agencies can carry out their vital statutory functions. It is important that nothing gets in the way of that, and that is why those clauses are offered.
Amendment No. 89 would remove the explicit relief afforded by clause 19(6) to a person properly giving information to any of the intelligence and security agencies, that is, relief from any duty of confidence owed by the person making the disclosure or any other restriction on that disclosure. Although a person could still rely on common law to justify disclosing information in breach of a duty of confidence or other restriction on the ground that it was for higher public interest purposes, that falls well short of the explicit relief provided to our intelligence and security agencies in clause 19(6), which mirrors the same relief afforded to SOCA in sections 33 to 35 of the 2005 Act.
The amendment would perpetuate the anomaly that we are seeking to correct whereby a person would get explicit relief in law from the duty of confidence if they gave information to SOCA for the purpose of preventing or detecting crime, but not if they gave it to the intelligence and security agencies for the prevention or detection of serious crime or even terrorism. Individuals fulfilling their responsibilities towards the security of society by properly providing information to such agencies should receive the relief and confidence provided in clause 19(6). For that reason, and because that relief is already established for SOCA under the 2005 Act, it is more than appropriate not to accept amendment No. 89. It challenges the raison d’être of much of the Bill. As I have suggested, although amendment No. 11 is probing, it is utterly irrelevant.

Dominic Grieve: That was helpful. Unless I missed it—I was briefly distracted for a moment—I still have not teased out the difference between
“the interests of national security”,
which I thought were one of the primary objectives of the Security Service and the Secret Intelligence Service, and their “functions”, and whether the two were supposed to be identical. The debate on that can conveniently be left for the next group of amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 70, in clause 19, page 14, line 43, leave out paragraph (a) and insert—
‘(a) in the interests of national security,’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 71, in clause 19, page 15, line 3, leave out paragraph (a).
No. 72, in clause 19, page 15, line 9, leave out paragraph (a) and insert—
‘(a) in the interests of national security,’.

Dominic Grieve: Here again, we have provisions dealing with information. The clause states:
“Information obtained by the Security Service for the purposes of any of its functions may be disclosed by it—
for the purpose of the proper discharge of its functions”.
In a funny way, that is a slightly circular argument. Interestingly, that appears not to include the purpose of national security, but it does include, in subsections (3)(b) and (c), the prevention or detection of serious crime and criminal proceedings. I contrast that with subsection (4), which states:
“Information obtained by the Secret Intelligence Service for the purposes of any of its functions”,
as opposed to the Security Service,
“may be disclosed by it—
(a) for the purpose of the proper discharge of its functions,
(b) in the interests of national security”,
which apparently does not apply to the Security Service. I do not wish to appear too nosey on the subject—maybe there is something that I ought not to know about, or maybe it is completely innocuous—but that strikes me as slightly odd. Will the Minister clarify why the test for the Security Service is different from that for the Secret Intelligence Service?
Can we also have some clarification of the difference between disclosure in the interests of national security, which is the primary function of both services, and the blanket expression “discharge of its functions”?

Tony McNulty: The amendments appear to have been drafted in the belief that clause 19 creates new permissions or prohibitions on what the intelligence and security agencies can and cannot disclose. It does not. The distinction between subsections (3), (4) and (5) is simply that they revert to the parent legislation and its definitions. For example, section 1(2) of the Security Service Act 1989 outlines the functions of the Security Service. They include the protection of the UK’s national security and economic well-being, a support role in respect of the prevention and detection of serious crime and so on. So when we consider the proper discharge of the functions of the Security Service—I cannot call it the SS. I got into trouble for saying that. We can call it the Security Service or SYS, but never, for obvious reasons, the SS, and quite rightly.
The discharge of national security is included in the functions, so there is no point in repeating it in the clause. National security is included separately in subsection (4) not because the Secret Intelligence Service somehow does not have such a function, but as the hon. and learned Gentleman will know, its principal concern is with the overseas dimension of activities rather than national security per se.
As I understand it, the functions outlined in the legislation do not include national security, because that is the job of the Security Service, but, clearly, for the purposes of the Bill and the information gateways that we are establishing, national security would be an additional function for SIS, and I believe it to be entirely the same for GCHQ. In other words, subsections (3), (4) and (5), as they currently stand, deliberately mirror the information gateway provided by section 2(2)(a) of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the Intelligence Services Act 1994, and do more than that, by establishing the proper relationship in respect of disclosure.
Accordingly, the effect of lowering or removing criteria in subsections (3), (4) or (5) would not in itself allow or prohibit the agencies from disclosing information, as each agency will still be governed by the terms of the 1989 Act or the 1994 Act as appropriate.
I am sure that it is not, but if the intention of the amendments were to stop or undermine the agencies undertaking the full range of statutory functions that Parliament has set them, this would not be the way to go about it. I am sure that that is not the case. What we are dealing with in this clause is the ability to share data and disclose information. The clumsy interaction of subsections (3), (4) and (5) reflects more on the distinct nature of the parent legislation that created the agencies than anything remotely nefarious.

Dominic Grieve: Does disclosure for the purpose of any criminal proceedings already feature in the Acts in respect of SIS and GCHQ?

Tony McNulty: Repeat that, please.

Dominic Grieve: Does disclosure for the purpose of any criminal proceedings already feature in the existing legislation in respect of SIS and GCHQ?

Tony McNulty: Not in terms of core functions. Otherwise provision would not be included at subsections (3)(c), (4)(d) and (5)(b), as appropriate. Yes. That is another way of saying what I said, but not in the form suggested.
Seriously, there is nothing nefarious or sinister in the clause. It is purely about creating the legal architecture to secure the appropriate information gateway for information to be shared between the agencies and other law enforcement bodies.

Sitting suspended for a Division in the House.

On resuming—

Tony McNulty: And that is why I urge the hon. and learned Gentleman to withdraw his amendment.

Dominic Grieve: I thank the Minister for his comments. The debate has been extremely useful. He has provided me with a great deal of reassurance, and in those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20

Disclosure and the intelligence services: supplementary provisions

Dominic Grieve: I beg to move amendment No. 69, in page 15, line 33, leave out subsection (4).
Subsection (4) states:
“Nothing in that section shall be read as casting doubt on the legality of anything done by any of the intelligence services before that section came into force.”
I hope that the Minister will excuse the fact that a smile crossed my face when I read that. I assume from this nice, little clause, which is entitled “supplementary provisions”, that in the past the intelligence services might have made disclosures on an informal basis that were not subject to statutory systems—I hinted at that earlier. As a result of the Bill, they will be subject to a statutory framework, which is extremely important and useful.
However, I have one concern: I do not think that this Committee’s role should be to pass retrospective legislation that provides blanket exemptions for past activities. I know of no example of the intelligence services being taken to task over what they might have done in this area, but one way of reading subsection (4) suggests that it seeks to do that. However, another way of reading it suggests that one cannot quote what we have now legislated on and pray it in aid as an example of the new framework when looking at the old framework. For those reasons, I am not completely comfortable with subsection (4), because it either has a purpose or it has not. If there is no purpose to it, it should not be there, and if there is a purpose, we need more detail on what it is.

Tony McNulty: As we have discussed, the central purpose of clause 20 is to provide clarity and reassurance on the fact that it is right to give information to the intelligence and security services to enable them to undertake their vital work. Amendment No. 69 would remove subsection (4) from the clause, as the hon. and learned Gentleman has indicated. The purpose of subsection (4) is to make it clear that previous disclosure of information to the intelligence and security services or by the agencies would not be unlawful following the introduction of the specific gateways provided by the Bill, but it is about exemptions. Until now, the reliance has been on common law, perfectly reasonably and legally, so it is not about retrospectivity or about seeking exemptions for what has gone before.
However, it would be perfectly reasonable to ask whether subsection (4) means that the intelligence and security agencies are currently engaged in illegal activity. The hon. and learned Gentleman has suggested that that might be questioned, but I am not suggesting for a moment that that is a perverse interpretation.

Dominic Grieve: No, I did not read it that way at all.

Tony McNulty: No, but others are far more mischievous than the hon. and learned Gentleman, so it might be read that way. To get the clarity provided by the interlocking nature of clauses 19, 20 and 21, we think that it is appropriate to put that phrase in to say that, by moving forward, we are not impugning at all any of the previous activities that relate to the intelligence agencies, because they of course were rooted clearly in common law.

Patrick Mercer: I absolutely take the point that the Minister makes—I also take the point from my hon. and learned Friend the Member for Beaconsfield—but he keeps using the word clarity. Subsection (4) will do nothing to add clarity, as far as I can see. It merely obfuscates. In a spirit of helpfulness, could we take out some of the double negatives. Would that make it clearer? I do not wish to go down the route of the canard, which is a phrase that the Minster has not yet used.

Tony McNulty: No, I have not used “undue specificity” either, but I am sure that we will return to that in due course. As the hon. and learned Gentleman has said, when subsection (4) states that
“Nothing in the section shall be read as casting doubt on the legality”,
it is simply referring to the disclosure provisions. It would be utterly mischievous if someone were to remove that clause from the Bill, look at it in a broader context and say, “Here we are. We have found a way to absolve the intelligence agencies of anything they have done in the past.” That is what the hon. Gentleman implied but did not pursue. The clarity that I talk of is the clarity of the relationships between, and the responsibility of, the agency and others regarding the disclosure of information, and no more. We are clearly setting up—in the jargon—the information gateways to put all that on a statutory footing, and it is a much clearer statutory footing than the previous root in common law. I shall return to the hon. Gentleman, but first, there may be some who suggest that if we are setting up the information gateway to afford the agencies the ability to disclose information in that fashion, there was no legal basis to do so before. There was, however. To get rid of any notion that the legal basis was not rooted in common law, or that somehow things are different now, we think that in the context of clauses 19, 20 and 21, the clause, however elegantly or otherwise written, is entirely appropriate and utterly relevant.

Patrick Mercer: I entirely take the Minister’s points, but can we please just clear up the English a wee bit? It is incredibly confusing.

Tony McNulty: It is, honestly, not for me to challenge either the English in the Bill or the lexicon that passes for English in English legalese.

Patrick Mercer: But you are a Minister.

Tony McNulty: Yes, I know that I am a Minister—for now at least—but it is not for me to challenge the great tradition of verbiage and distorted English that is legalese in English statute. I thought that it was a rather elegant little phrase, but the import is as I have outlined, and I am assured by those far more versed in these matters than I that it is the appropriate way—albeit in doggerel rather than in English—to put the matter across in statute. Who am I—a mere Minister—to challenge the great and the good in that regard?
 Mr. Grieve rose—

Tony McNulty: Talking of which, of course.

Dominic Grieve: I am afraid that the Minister is not entirely persuasive on that point. I am intervening on him—as I understand it—so he has an opportunity to respond. It is deliberately—

Edward O'Hara: Order. I understood you to be responding.

Dominic Grieve: I was not sure whether the Minister was giving way or sitting down.

Tony McNulty: At this stage, nor am I.

Dominic Grieve: I shall take it that the Minister is sitting down.

Edward O'Hara: The debate can proceed.

Dominic Grieve: I am grateful to you, Mr. O’Hara.
I am, perhaps, less kind to the Minister than my hon. Friend the Member for Newark is about the phrase under discussion, which is quite deliberately obfuscatory. I do not think that it can be reworded, because it would have to be reworded either one way or another. One way would be to do something that is unlawful, and pass retrospective legislation giving a blanket exemption to the security services for past potential misdeeds, which is not what the phrase says. The alternative would be to water it down still further, in which case the question would be, why is it there at all?
I am a little puzzled, because it is not right for the Committee, or indeed for the House, to construct a statement making it potentially impossible or more difficult for a person, if they were minded to do so, to make an allegation of illegality against any public authority or organisation. The Minister has nailed his colours to the mast, and I have never suggested that the Security Service or the Secret Intelligence Service have acted illegally in that area, which is about disclosure anyway. I rather take his view that the common law has covered it perfectly adequately in the past and it is not an issue. We have a common law right to do all sorts of things. I, as a lawyer, have an absolute common law right, for example, to disregard legal privilege if I think that legal privilege in information imparted to me is for the commission of crime. It is in fact my duty in those circumstances to tell somebody about it, irrespective of the legal professional privilege that may attach to it. I do not think that that is the issue. However, in those circumstances, I am remain puzzled about why subsection (4) is in the Bill at all, unless it is because somebody has a superabundance of caution or got unnecessarily twitched up.

Tom Brake: Does the hon. and learned Gentleman agree that the subsection is quite peculiar? Can he think of any other examples of subsections of this nature?

Dominic Grieve: I was about to say that I cannot, but in the currency of things, I long ago discovered that if I find something odd in drafting, somebody can usually find me a precedent or something very similar in legislation, because that it is usually how parliamentary draftsmen work.
I find the subsection odd. I can just see the Minister’s point that somebody might go to court and say, “What was done in the past must have been illegal, because look at what has now been done to put it right.” The answer to that is, “Not at all. Everything done in the past has been done on the basis of common law rights of disclosure, and we are quite confident about that.” In any case, there is no reason that that could not be said without the subsection. If it does not provide a legal protection, but is merely a device to be waved in the face of a court, it would seem to be peculiarly valueless.
Furthermore, a bit of me does not like putting in statute something that appears to be of no value and, as a result, fairly incomprehensible in its thrust. For those reasons, I do not much like the subsection. As I have said, I might have missed something. The Minister might be in position to respond further—you might give him leave to do so, Mr. O’Hara. At this stage, I am minded not to press the amendment to a vote, but I am sufficiently uncomfortable with it to think that it will be returned to at later stages. It is just the sort of thing that I can imagine being returned to in another place, if we do not return to it here. For that reason, I hope that the Minister will give it further consideration.
I wonder whether the subsection is necessary and whether it might not have the unintended consequence of being a red rag to a bull. The subsection might encourage people to argue before the courts that it means nothing and that, therefore, they want to ferret around to find out what has been done in the past, which would require common law to be invoked to provide the two agencies with protection. I am inclined to say that there is no point in having the subsection, so why not take it out? However, I shall not press the Minister on that, but I hope that he will reflect on what it really adds to the sum total of the Bill.

Tony McNulty: I have listened carefully to, and shall reflect on, the hon. and learned Gentleman’s comments. However, it does not detract from what I have said already. I think that the subsection provides for a necessary requirement. As I said, it refers entirely to clause 19 and the principle that information gateways be established therein. It also needs to be considered that clause 19 simply reflects sections 33 and 35 of the Serious Organised Crime and Police Act 2005 and the gateways established there, which we seek to mirror with the intelligence agencies. Some have suggested that the common law on which those agencies have relied thus far—perfectly properly—is not only challenged by the establishment of the gateways in the Bill, but by the initial gateways established by sections 33 and 35 of the 2005 Act. There should be no doubt about the need for subsection (4).

Dominic Grieve: To make the position absolutely clear, is the Minister suggesting that subsection (4) provides any kind of immunity or protection against the security services being proceeded against for breaches of the previous basis on which information was disclosed to them? If the answer is yes, frankly we should have no part in it, because it is retrospective legislation. If the answer is no, there is no point in subsection (4).

Tony McNulty: I do not agree that there is no cause to have the clause—if I can put it that way—because I think that the latter point, and not the former one, is the right one. As I have said before, it is not about retrospectivity, exemption or immunity. Exemption and immunity are not required because all actions up until now have been rooted in common law. As with the SOCA Bill and this Bill, the subsection is included to confirm that that is the case. It may be clumsy and the red rag to a bull, as the hon. and learned Gentleman suggests, but I am told, and I am persuaded, that the subsection is better in than out. It is only in that context, and only referring to the disclosure provisions outlined in clause 19, do I think that it is necessary. As I alluded to earlier, one could mischievously—if one were far more mischievous than anyone here—remove the clause from the Bill in its entirety, wave it around and say, “Here we are.” Then we get into the sort of terms of immunity exemption and everything else that has been referred to. Notwithstanding the comments about my clarity being another’s obfuscation, or the other way round, the provision is appropriate to the Bill and I think that it should stay there.

Dominic Grieve: I have said my piece. I have urged the Minister to think about the matter, as I suspect others will do during the passage of the Bill through Parliament. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tony McNulty: I beg to move amendment No. 74, in page 15, line 35, at end insert—
‘( ) Schedule (Disclosure and the intelligence services: consequential amendments) contains amendments consequential on that section.’.

Edward O'Hara: With this it will be convenient to discuss Government amendments Nos. 78 and 79 and Government new schedule 2

Tony McNulty: This group of amendments and the change to the schedule are consequential and technical and they follow from the thrust of clauses 19 to 21. Essentially, they reconcile the disclosure and intelligence service provisions of clauses 19 to 21 with existing legislation through consequential amendments to, among others, the Representation of the People (England and Wales) Regulations 2001, the UK Anti-Terrorism Crime & Security Act 2001, the Immigration, Asylum and Nationality Act 2006, which I put through the House—if one lives long enough, one gets to amend the Bills that one put through in the first place—and the Statistics and Registration Service Act 2007.
Simply put, at the time that the original clauses were tabled, the full extent of the necessary consequential amendments were not appreciated and the amendments are the logical consequences of the original clauses 19 to 21.
The amendments to the 2001 regulations are required to preserve the existing rights of the service to receive information on the electoral register while removing the restriction on onward disclosure. The other amendments refer in similar fashion to, among other things, removing the existing bespoke information-sharing gateways to the intelligence and security agencies for revenue departments, immigration and nationality information, and Statistics Board-related information. The provisions are unnecessary given the new general provisions that allow any person to disclose information to the intelligence services for the purposes of the exercise of their functions.
I know that people bristle when a Minister says that the amendments are purely technical and not to worry about them. I assure the Committee in this instance that they are and I commend them with relish to the Committee.

Amendment agreed to.

Clause 20, as amended, ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Alan Campbell]

Adjourned accordingly at twenty-five minutes to Seven o’clock till Tuesday 6 May at half-past Ten o’clock.